In reversing Supreme Court, the Second Department determined the emergency doctrine did not apply to a police officer’s striking the plaintiff with his patrol car and ordinary negligence principles applied: In the instant case, Officer DeMarco acknowledged that he did not see the plaintiff until after he struck him with his car. His conduct – […]
In reversing Supreme Court and finding the motion to set aside the verdict should have been granted, the court determined there was no valid line of reasoning that led to the conclusion plaintiff’s serious injury was related to the car accident at issue: Here, viewing the evidence in the light most favorable to the plaintiff, […]
In reversing the grant of summary judgment to the defendant in a car accident case, the Second Department noted there can be more than one proximate cause of an accident and defendant failed to demonstrate freedom from comparative fault: “There can be more than one proximate cause of an accident”…. A driver who has the […]
In playing tennis on defendant’s court, plaintiff, when back-pedaling to reach the ball, was injured when he stepped on a plastic water bottle which was behind a curtain separating the court from an adjacent wall. In reversing Supreme Court’s grant of summary judgment to the defendant [Lifeplex], the Second Department determined Lifeplex had not demonstrated […]
The Second Department determined a slip and fall case could go ahead because the town failed to submit sufficient proof in its summary judgment motion that town records were searched for the notice: Here, the defendant failed to demonstrate its prima facie entitlement to judgment as a matter of law on the ground that it […]
In affirming the dismissal of plaintiff’s complaint for false arrest, malicious prosecution, assault and battery, etc., the Second Department noted: “ [p]ublic policy bars claims for intentional infliction of emotional distress against a governmental entity’”… . Rodgers v City of New York, 2013 NY Slip Op 03926, 2nd Dept, 5-29-13
In reversing the vacation of the dismissal of a medical malpractice action, the Second Department noted that it was improper to submit an affidavit of merit from a medical expert in reply papers: The assertion of the plaintiff’s counsel that he incorrectly calendared the date on which the note of issue was due amounted to […]
In ruling that both defendant’s and plaintiff’s unsigned deposition transcripts could be considered in slip and fall summary judgment motion, the Second Department wrote: Contrary to the plaintiff’s contention, the Supreme Court properly considered the deposition transcripts submitted in support of the motion. The unsigned but certified deposition of the defendant was admissible under CPLR […]
The Second Department noted that the defendant’s failure to raise the denial of his constitutional right to present a complete defense and confront witnesses (re: cross-examination of victim about an alleged motive to fabricate) at trial rendered the issue unpreserved for appellate review. People v Simmons, 2013 NY Slip Op 03861, 2nd Dept, 5-29-13
The Second Department, over a dissent by Justice Balkin, affirmed a determinate sentence of five years in prison. The sentencing court chose not to apply Penal Law 60.12 (Jenna’s Law) which allows indeterminate terms of imprisonment for first-time violent felons if the victim’s domestic violence was a factor in the commission of the crime (criteria […]
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